SWAZILAND KING ‘ABOVE THE LAW’

While Swaziland has been celebrating the 40^th birthday of King Mswati III, life in the kingdom goes on as usual.

The government wants to toss the Swazi Constitution into the dustbin because it says nobody is allowed to challenge the authority of the King.

There has been a long running dispute about the elections in Swaziland which take place next week. It centres on the selection of members of the Elections and Boundaries Commission (EBC). The constitution says the chair should be a senior judge. Instead, the chair Chief Gija Dlamni has no legal experience and is variously described as an electrician or an electrical engineer. Most of the other EBC members have no legal background.

The Swaziland Coalition of Concerned Civic Organisations (SCCCO) challenged the composition of the board in court and was told this week that they could not take a case to court because to do so would challenge the authority of the King (the person who chose the EBC).

The Times Sunday reported (7 September 2008) the government says that Section 11 of the Section 11 of the constitution states that the King is ‘immune from any suit or legal process in any cause in respect of all things done or omitted to be done by him and being summoned to appear as a witness in any civic or criminal proceeding’.

Put in simple English, it means the King is above the law. If you look at the wording of Section 11 it is very difficult not to side with the government. The point is of course that the constitution was never meant to be a document for democracy, it was meant to (and does) enshrine the power of the monarch in Swazi life. Such is democracy in Swaziland.

The Times Sunday reports, ‘The immunity of the king to court proceedings is also worrying Anti-Corruption Commissioner H Mtegha, a retired judge from Malawi. He was quoted by the British Daily Telegraph saying he was not optimistic: “If we go after someone high up and he says the king told me to do this, what can I do? To be satisfied, I’d have to ask the king himself, and this cannot be done. The king is immune.”’

With characteristic robustness, the SCCCO has attacked the government’s position. In a media release issued yesterday (8 September 2008) it ‘mourned the short life and the early death of the Swazi Constitution.

‘The government of Swaziland chose to ignore the Constitution when it appointed the five Elections and Boundaries Commissioners. When it was challenged on the constitutionality of the appointments by the Coalition its response is to blame the King and to hide behind the section of the Constitution that grants him immunity from prosecution in the courts.’

SCCCO goes on, ‘S 90 of the constitution demands that the Elections Commission to be independent and the Commissioners to be of the standing of High Court Judges or to have significant experience and relevant competence. The Coalition’s case is that a Commission made up from chiefs, public servants and loyalists such as this one cannot be independent, credible or constitutional.

‘The government’s reply to the Coalition case has made no effort to defend or explain the constitutionality of the appointments; it has just chosen to hide behind s11 of the Constitution that gives immunity to His Majesty from civil or criminal action. The Coalition assumes that this is because the government understands that the appointments are totally outside the letter and the spirit of the Constitution, illegal and utterly indefensible.’

The statement continues, ‘Bishop Meshak Mabuza chair of the Coalition said, “A constitution is about more than words on paper but also about customs, practices and attitudes. His Majesty gave the Constitution to the nation but his Government has fallen at the first hurdle of constitutionalism. It has ignored the fact that it is bound by the constitution too. For this government to brazenly flout our supreme law in this way effectively takes us back to the 1973 proclamation where the government can do exactly as it wants. Either we have a Constitution or we do not.

‘“The government’s stance shows this constitution to be window dressing for a system that has no interest in change or democratic development. Section 11 of the constitution is meant to protect the good name of the Monarch. If the government is going to defend every constitutional case like this then we cannot say we have a constitution, we have a fig-leaf that was designed to cover the undemocratic blushes of the traditional authorities.”’